Saliba v Town of Bassendean
[2013] WASC 93
•20 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SALIBA -v- TOWN OF BASSENDEAN [2013] WASC 93
CORAM: HALL J
HEARD: 28 FEBRUARY 2013
DELIVERED : 28 FEBRUARY 2013
PUBLISHED : 20 MARCH 2013
FILE NO/S: GDA 14 of 2012
BETWEEN: CARMEL CHARLES SALIBA
Appellant
AND
TOWN OF BASSENDEAN
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR P D McNAB
File No :DR 244 of 2012
Catchwords:
Appeal from State Administrative Tribunal - Decision to refuse extension of time - Whether any error of law - Whether Tribunal failed to properly assess merits of the review application - Review of notice under Local Government Act 1995 (WA) to remove rubbish and disused material - Whether any arguable grounds for seeking that review
Legislation:
Local Government Act 1995 (WA), s 3.25, sch 3.1 div 1 cl 5A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T L Beckett
Solicitors:
Appellant: In person
Respondent: McLeods
Case(s) referred to in judgment(s):
Bowman v Durham Holdings (1973) 131 CLR 8
British American Tobacco v Laurie [2011] HCA 2
Chin v Legal Practice Board [2011] WASCA 110
Di Virgilio v McCleary [2012] WASC 437
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corp Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
Saliba v Town of Bassendean [2012] WASC 430
HALL J:
Introduction
On 28 February 2013 I refused leave and dismissed this appeal and gave some brief reasons for my decision. I said that more detailed reasons would be published in due course. These are those reasons.
This is an application for leave to appeal from a decision of the State Administrative Tribunal (SAT) made on 3 August 2012. The decision was to refuse an extension of time to seek review of a notice issued by the respondent, the Town of Bassendean, to the appellant, Mr Saliba, pursuant to s 3.25 of the Local Government Act 1995 (WA).
There have been other such notices that have been the subject of proceedings in the SAT and in this court: See Saliba v Town of Bassendean [2012] WASC 430.
An appeal to this court from a decision of the SAT of this nature can only be on a question of law: s 105 State Administrative Tribunal Act 2004 (WA). As to the circumstances in which leave should be granted and what constitutes a question of law see Paradis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, [16] ‑ [18], [53] ‑ [57] (Buss JA with whom Wheeler and Pullin JJA agreed).
Mr Saliba filed an appeal notice on 21 August 2012. It was completed in handwriting by Mr Saliba and the ground is difficult to understand. However, at the hearing of the appeal it became clear that he was arguing that the SAT erred by not allowing an extension in circumstances where the reasons for the delay were illness and a misunderstanding as to the date from which time ran.
Application to disqualify
At the commencement of the hearing, Mr Saliba made an oral application that I disqualify myself on the ground that I had previously made decisions adverse to him. In particular he referred to the decision in Saliba v Town of Bassendean [2012] WASC 430. He said that he believed he had not been given a fair hearing in that matter, though no particulars were provided. It was not clear whether actual or perceived bias was being alleged. I refused the application. My reasons for doing so are as follows.
There may be situations in which previous decisions by a judicial officer may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. That does not mean that previous decisions are an acceptable basis for inferring that there is a reasonable apprehension that a judge will necessarily approach the issues in that way. In cases of this kind disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre‑judgment and this must be firmly established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J) and Re Polites; Ex parte Hoyts Corp Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron and Toohey JJ).
Where a party contends that actual bias exists, the applicant must show that the mind of the judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532. Actual bias will exist where the judge has acted with such partisanship or hostility as to show that he or she has made up his or her mind and is not open to persuasion in favour of the applicant: Jia Legeng [36], [72]. Such an allegation must be distinctly made out and clearly proved: Jia Legeng[69], [127].
The failure of Mr Saliba in previous proceedings before me does not support a conclusion that I am unable to bring an impartial and unprejudiced mind to the present matter. The hearing of the previous appeal was unremarkable and, though Mr Saliba claims it was unfair, he has provided no basis for making that suggestion. Furthermore, there is nothing in my reasons in that case that could cause any reasonable observer to apprehend that I might not bring an unprejudiced mind to the present appeal: British American Tobacco v Laurie [2011] HCA 2. See also Chin v Legal Practice Board [2011] WASCA 110 [1] ‑ [11] (Newnes JA).
Background
The notice in this case related to a property owned by Mr Saliba at 96 Second Avenue, Bassendean. It required removal of listed items on the basis that the land was considered untidy. The notice gave Mr Saliba 42 days to remove the items.
The notice is dated 17 May 2012 and was posted the same day. Such a notice may be served by post: s 9.50 Local Government Act. A notice given by post is deemed to have been received at the time when the notice would have been delivered in the ordinary course of the post: s 75 Interpretation Act 1984 (WA). The meaning of the words 'in the ordinary course of the post' are not concerned with the idiosyncracies of a particular addressee but rather with the general delivery practice of the postal service. See Bowman v Durham Holdings (1973) 131 CLR 8. Accordingly, the address being within the metropolitan area the normal course of post would have resulted in delivery by 18 or 19 May 2012 at the latest.
Section 9.5 of the Local Government Act provides that an objection to a notice may be made within 28 days or such further time as the relevant local government authority may allow. In this case the notice allowed 28 days to lodge an objection. It also stated that a review could be sought from the SAT within 42 days. That was in accordance with s 9.7 of the Local Government Act.
Mr Saliba did not lodge an objection with the local government authority, being the respondent. He did however apply for a review to the SAT. That application for review was filed on 9 July 2012. That application was nine days out of time and an extension was required.
The State Administrative Tribunal Rules r 10 provides for the circumstances in which an extension of time may be granted. The application for an extension was heard on 3 August 2012 by Member McNab and refused.
The reasons for seeking the extension of time were given by Mr Saliba who represented himself in the SAT and on this appeal. He told the SAT that he had been ill and staying with his daughter in Brigadoon and had been unable to collect his mail for some time. He was also having memory lapses as a result of surgery that he had undergone. In consequence his mail, or at least this particular item of mail, had not been collected until 6 June 2012. There was no medical evidence to support the claims made. Nor any adequate explanation of why it had taken from 6 June 2012 to 9 July 2012 to file the review application.
Decision of the SAT
In his reasons for decision Mr McNab took into account the reasons given by Mr Saliba for the delay and that the delay was a comparatively short one. However, he also took into account other factors. He said:
However, in my view, the overarching factor in the exercise of discretion in this case is whether he has an arguable case. In my view, Mr Saliba does not have an arguable case and if there was an extension of time, it would be a futile case.
I am satisfied on what I have heard today and on the material and on the own admissions of Mr Saliba that the property, at least at the relevant time, was untidy within the meaning of the Local Government Act; that the notice was perfectly justified and that it is not an answer to the case to ask for further time to comply with the notice given the time frames that have already been given to him.
I have heard evidence that there have been a number of complaints and a number of notices about this property. It is also on the public record in relation to this Town that Mr Saliba has had a number of properties in a similar situation. From my own experience and on what is available on the public record, I am reminded that similar excuses have not been accepted by the tribunal on a number of matters.
One could not conclude that there is any reasonable prospects of Mr Saliba if the case went to trial of succeeding on the case as it is and I think the notice was perfectly justified. In these circumstances, particularly having regard to the futility of granting any extension, the application for an extension of time should be refused (ts 25).
The law in respect of extensions of time in the SAT has been recently considered by me in the case of Di Virgilio v McCleary [2012] WASC 437. In that case, relying upon earlier decisions of this court, I noted that the four factors that were generally considered to be relevant to such an application were the length of the delay, the reasons for delay, whether there was an arguable case and the extent of any prejudice.
It is clear from the reasons of Mr McNab that he took into account those factors in reaching his decision. In particular the determinative factor in this case was whether there was an arguable case.
Was there an arguable case?
As regards whether there was an arguable case it was relevant to take into account the grounds upon which Mr Saliba was seeking a review of the notice. They were:
The reason I need more time is health, giving me a lot of problems, and at the present time I have nowhere to store the material. The furniture on the side of the house is waiting for a shire collection.
Mr Saliba's argument was that he had already cleared away much of the material listed in the notice and had removed it behind his fences. What in essence he was saying was that there was no need for the respondent to issue the notice because the property was no longer untidy and to the extent that any items of rubbish remained he was in the process of removing them.
There were a number of photographs that were before the SAT and it was noted that some of them related to materials that were behind the fences, but others did not. In particular there were photographs which showed some items that appear to be under a tarpaulin, some bricks around what appears to be a water meter, a drum, items of rubbish next to bins, and items on the porch which include what appears to be a piece of fibreboard or chipboard.
The SAT's conclusion in regard to the photographs was that whilst some things had been tidied away there were other items which were visible from the street and that Mr Saliba had indicated an intention to clear those items away. There were also other things that had been itemised on the notice that had merely been moved behind the fences. The learned Member concluded that, based on the information before him and on admissions of Mr Saliba, the property was untidy within the meaning of the Local Government Act.
Section 3.25 of the Local Government Act provides that a local authority may give a person who is the owner of land a notice in writing relating to that land requiring the person to do anything specified in the notice that, amongst other things, is prescribed in sch 3.1 div 1 of the Act. Clause 5A of sch 3.1 div 1 of the Act provides that a notice may require that overgrown vegetation, rubbish or disused material, as specified, be removed from land that the local government considers to be untidy. 'Disused material' is defined in cl 5A(2) as including disused motor vehicles, old motor vehicle bodies and old machinery. A person who fails to comply with a notice commits an offence: s 3.25(6) of the Local Government Act.
Mr Saliba placed considerable emphasis on many items not being visible because they had been removed behind fences. He claimed that in previous proceedings there had been a mediation in which he had been led to believe that if items were not visible from the street, that is cleared away behind fences, that he would not be in breach of any notice that the respondent issued. It is not necessary for me to determine that issue, but it is clear from the face of the notice that it does not rely upon the items being unsightly but on the property being untidy. The question of untidiness is not concerned only with the appearance of a property from the street but with dangers and ill‑effects that may be caused to neighbours and the public from excess accumulation of rubbish or other items that may be referred to in a notice. Such items may result in not only unpleasant odours, for example, but also potential fire risks.
On the information available to the SAT there was no basis for suggesting that the notice was unnecessary or invalid. The photographs showed the continuing existence of rubbish on the property. Mr Saliba's only answer was to say that much of the rubbish had been moved behind fences; but that could not possibly be an answer to the claim in the notice that the property was untidy.
Conclusion
In order to succeed on this appeal Mr Saliba would have to show that there was an error of law in the way in which the SAT dealt with his application. A decision as to whether to grant an extension of time is essentially a discretionary one. Whether an extension should be granted depends upon a weighing of considerations. It is clear from the decision of the SAT that all of the relevant considerations were taken into account.
The only real issue raised by Mr Saliba on this appeal was whether the SAT was correct in the assessment of whether he had an arguable case. Having examined the SAT's reasons I am unable to discern any error of law in that regard. In those circumstances the conclusion of the SAT that an extension should not be granted is one that is not amenable to an appeal to this court. Accordingly leave was refused and the appeal dismissed.
2
9
1